Section 71 Evidence Act: Proof When an Attesting Witness Denies Execution
Understand how an attested document may be proved when an attesting witness denies having witnessed its execution or cannot remember it, under the Indian Evidence Act, 1872 and the Bharatiya Sakshya Adhiniyam, 2023.
Legal position reviewed: 20 October 2026
Text of Section 71, Indian Evidence Act, 1872
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Section 70, Bharatiya Sakshya Adhiniyam, 2023
Section 70 provides the corresponding rule: when an attesting witness denies execution or does not recollect execution of the document, its execution may be proved by other evidence. This is a safeguard against failure of proof merely because an attesting witness turns hostile or genuinely cannot remember the event.
Read the enacted legislation on the official India Code portal: Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023).
Meaning of the legal terms
Attesting witness
A person who witnesses execution or receives the executant's personal acknowledgment of execution, and signs the document to attest it with the required intention. Whether attestation is legally required depends on the type of instrument.
Execution of a document
The act of signing or otherwise formally completing a document with the intention required by the governing law. For an attested instrument, proof of execution may also require proof of proper attestation.
Denial or failure of recollection
A denial occurs when a witness disputes execution or the attestation facts. Failure of recollection occurs when the witness cannot remember them. Section 70 permits other admissible evidence in these situations, subject to the requirements for the particular document.
When can other evidence be used?
- Call the attesting witness where required. Under former Section 68 (now BSA Section 67), at least one available, competent attesting witness generally must be called to prove a document legally required to be attested, subject to the statutory exception for certain registered non-will documents.
- Establish denial or loss of memory. The testimony should reveal that the attesting witness denies execution or does not remember it.
- Offer independent, admissible evidence. Depending on the case, this may include testimony of persons present at execution, evidence identifying signatures or handwriting, contemporaneous records and other admissible circumstances.
- Prove the legal formalities. The court must still be satisfied that the instrument was executed and, where required, attested in the manner prescribed by law.
Important limitation: Section 71 is not a means to bypass Section 68 by deliberately withholding an available attesting witness or by failing to elicit proof from a witness who could establish execution. Its operation depends on the evidence and circumstances of the case.
Special considerations for wills
A will must satisfy the execution and attestation requirements of Section 63 of the Indian Succession Act, 1925, where applicable. The usual requirement to prove a will through an attesting witness remains important. If a witness denies or forgets execution, Section 70 of the BSA (formerly Section 71) can permit other evidence, but it does not dispense with the need to establish due execution and attestation.
For comparison, former Section 69 deals with situations where no attesting witness can be found, whereas Section 71 addresses a witness who denies execution or cannot recollect it.
Practical example
A person challenges a will. An attesting witness appears in court but says that they cannot remember seeing the testator sign or acknowledge the will. The party relying on the will may seek to establish execution and attestation through other legally admissible evidence. Whether the will is proved ultimately depends on the full evidentiary record, the statutory formalities and the court's assessment.
Which evidence law applies after 1 July 2024?
The Bharatiya Sakshya Adhiniyam, 2023 repealed the Indian Evidence Act, 1872, with savings under Section 170 for specified proceedings pending immediately before its commencement. Courts must consider the applicable transitional rule rather than assume that every older case is automatically governed by the new Act.
Frequently asked questions
What does Section 71 of the Indian Evidence Act provide?
If an attesting witness denies execution of an attested document or does not recollect it, execution may be established through other admissible evidence.
What is the corresponding provision under the Bharatiya Sakshya Adhiniyam?
Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 addresses proof where an attesting witness denies execution.
Can Section 71 replace the requirement to call an attesting witness?
No. It is a safeguard when an attesting witness who has been called denies or cannot remember execution, not a shortcut to avoid the ordinary requirement to call an available attesting witness.
Does this rule apply to wills?
Yes, where a will is required to be attested, the court must consider the special requirements for proving its execution and attestation, including the Indian Succession Act, 1925.
Official laws and related provisions
- Bharatiya Sakshya Adhiniyam, 2023 - official India Code record (Sections 67-70 and 170).
- Indian Evidence Act, 1872 - official India Code record (historical Sections 68-71).
- Indian Succession Act, 1925 - official India Code record (Section 63).
This article explains general statutory rules. Proof of any specific document depends on its nature and the evidence before the court.